July 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KALLE HOWARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2081.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011
Before Judges Reisner and Alvarez.
On July 20, 2007, defendant Kalle Howard was sentenced in accord with a plea bargain to an aggregate term of six years imprisonment subject to three years of parole ineligibility as an extended-term offender on three counts of possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. He now appeals and we affirm.
On December 14, 2006, prior to the entry of defendant's guilty plea, the trial court denied his motion to suppress. Because defendant's principal issue on this appeal is the denial of the motion, we summarize the circumstances as set forth in the record of that hearing and the judge's statement of reasons, filed after the notice of appeal pursuant to Rule 2:5-1(b).
On February 26, 2006, Detective Joseph Frost, Sergeant Burlos*fn1 , and Officer Linda Cantalupo, all of the Newark Police Department's Narcotics Enforcement Task Force, were performing "vertical narcotics checks," dressed in plain clothes, in the Felix Fuld Public Housing Complex. The phrase means the officers actually patrolled the length of the staircase of each building. Both Frost and Cantalupo testified on behalf of the State.
The officers considered the complex to be not only an "extremely high narcotic area," but "violent" as well, as a Newark police officer was shot there two years before. In fact, they heard the sound of a gunshot as they were on their way down a flight of stairs in a particular apartment building.
Two of the officers immediately ran to the first floor and saw defendant coming through the front door of the building into the vestibule, holding his right arm to a bulge on his side. Cantalupo called in the shots before joining the other two officers on the first floor. They identified themselves, displayed their badges, and drew their weapons as they "didn't know what he had." The officers instructed defendant to put his hands up against the wall and, as he lifted them up, a "big glassy bag fell out," later found to contain 100 red-capped vials of cocaine. Once he was arrested, three more bags of heroin were found on his person. When the dispatch tape related to the incident was later played back, Cantalupo's voice was heard calling in a "644," or shots fired, and, later on, drug activity. That shots were being fired was reported first.
Defendant's paramour, Twanda Knight, testified at the suppression hearing at significant variance from the officers. She said that on the night in question she was in her apartment with her children. She claimed that a police officer walked in, asked if she was defendant's "baby mother," told her the police knew defendant carried guns, and stated, as a result, that they wanted to search the apartment. When Knight informed the officer that defendant did not live there, the officer replied that if she did not consent, he would obtain a warrant and have the Division of Youth and Family Services take her children. As a result, she let the officer search through defendant's belongings. Knight also claimed the officer who initially entered told her that "he had a problem with Kalle before[,]" and that the woman officer asked for her name. The officer who ultimately searched through defendant's belongings told her she could be prosecuted if she "tr[ied] to go against" the officers.
Knight further testified that a total of three officers, including a woman and Frost, pushed defendant through the door and onto the couch as they entered the apartment. She said he was handcuffed and that police brought him in before the officers conducted the search. She said the items removed from defendant's belongings were placed in a shoebox. Knight agreed there was a gunshot, but claimed she heard the sound after the officers were in her apartment, and after the search of the premises had begun.
The judge's statement of reasons included a recitation of the circumstances as described above. The judge concluded that minor differences between individual officers' testimony were inconsequential; in fact, the discrepancies merely heightened the officers' credibility. Their stories were not polished and practiced presentations of a well-rehearsed narrative. The judge did not find Knight's testimony credible, not only because the story was inherently illogical and therefore suspect, but because Knight's acknowledged relationship with defendant established bias on her part.
The application was accordingly denied based on the plain view doctrine. The judge reasoned that the officers had a sufficient basis to make an investigative stop of defendant pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Once defendant was stopped, and the plastic bag fell out of his hand, the contraband came into plain view of the officers. Thus, their seizure of the drugs and arrest of defendant was lawful.
Defendant's points on appeal are:
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF A WARRANTLESS SEARCH BECAUSE THE SEARCH OF DEFENDANT WAS CONDUCTED WITHOUT REASONABLE SUSPICION, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS POINT TWO
DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION For the reasons stated by the trial judge, we affirm her denial of the motion to suppress. This warrantless search was clearly justified: defendant ran into an apartment building moments after a gunshot was heard while holding onto a bulge at his right side. As Frost said, it was unknown whether defendant was an injured victim or an assailant hiding a gun in the suspicious bulge. The officers had no choice but to make an investigative stop, for their safety and that of others, to determine whether a weapon was concealed beneath the bulge. The officers had a reasonable and particularized suspicion which justified a Terry stop and justified their request that defendant turn and place his hands on the wall. See State v. Amelio, 197 N.J. 207, 211-12 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); State v. Pineiro, 181 N.J. 13, 25 (2004); State v. Stovall, 170 N.J. 346, 356 (2002).
An apartment hallway is an area where police are authorized to be present. See State v. Alexander, 170 N.J. Super. 298, 304 (Law Div. 1979), aff'd, 173 N.J. Super. 260 (App. Div. 1980). The circumstances required that defendant be detained. Once defendant dropped the bag containing contraband in the process of responding to the officers' instructions, the officers were entitled to seize it. State v. Johnson, 171 N.J. 192, 218-20 (2002).
We next turn to defendant's argument that his sentence was illegal, excessive, and constituted an abuse of discretion. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If findings as to aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.
The State admittedly did not file the requisite application for defendant to be sentenced as a mandatory second-time drug offender as required by the statute. See N.J.S.A. 2C:43-6(f). These were defendant's second and third convictions for drug distribution. The sentencing judge was compelled to sentence defendant to an extended term, and the State's technical failure did not relieve him of that sentencing consequence. As the State points out, defendant was on notice when he entered into the written plea agreement that he would be sentenced as a mandatory extended-term offender and would receive six years. Since defendant was aware of the potential sentence, given the technical nature of the State's failure to file the appropriate motion, we will affirm the imposition of a six-year term of imprisonment subject to three years of parole ineligibility.
Defendant also argues his sentence is excessive in light of his single prior indictable conviction. Defendant was sentenced for two third-degree possession of CDS in a school zone, his second and third drug distributions, and received nearly the shortest sentence possible in the second-degree range; therefore, the argument that the sentence was excessive does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
As the State concedes, however, a second $30 Law Enforcement Officers Training and Equipment Fund penalty was mistakenly imposed. We authorize a limited remand to correct this error, but affirm in all other respects.
Affirmed, except for a limited remand to correct the judgment of conviction.